images-1The California Public Records Act protects the use records of those—residents and businesses—who are customers of local governmental utilities like water districts and municipal utility districts. That makes it hard for the public to know for certain whether, and if so by how much, those users are consuming excessive water in the current drought—with three important exceptions.

Government Code §6254.16 provides:

Nothing in this chapter shall be construed to require the disclosure of the name, credit history, utility usage data, home address, or telephone number of utility customers of local agencies, except that disclosure of name, utility usage data, and the home address of utility customers of local agencies shall be made available upon request as follows:

  1. To an agent or authorized family member of the person to whom the information pertains.
  2. To an officer or employee of another governmental agency when necessary for the performance of its official duties.
  3. Upon court order or the request of a law enforcement agency relative to an ongoing investigation.
  4. Upon determination by the local agency that the utility customer who is the subject of the request has used utility services in a manner inconsistent with applicable local utility usage policies.
  5. Upon determination by the local agency that the utility customer who is the subject of the request is an elected or appointed official with authority to determine the utility usage policies of the local agency, provided that the home address of an appointed official shall not be disclosed without his or her consent.
  6. Upon determination by the local agency that the public interest in disclosure of the information clearly outweighs the public interest in nondisclosure.

Subdivision (e) discourages those who set utility consumption policies, including drought rationing, from being scofflaws violating their own rules, by opening their consumption data to the public—if they are customers of the agency whose policies they set.

Subdivision (f) would allow the agency to decide that putting all customers’ use data on the public record, during the drought at least, was as a matter of overriding public interest.

And subdivision (d) would allow the agency to decide to out the scofflaws–disclosing those who had exceeded ration use limits, who had been fined for such excess consumption, or both.  This grant of discretion to the agency reflects a 1990 decision of the California Court of Appeal, which held that the public interest in deterring excessive use during an earlier drought outweighed the privacy rights of the rationing violators. In New York Times Co. v. Superior Court (Goleta Water District), 218 Cal.App.3d 1579, the court dealt with a newspaper’s request for the names of residents and businesses that had exceeded rationing limits in their use of water supplied by a local agency.

Petitioner asserts that the information sought is located in public records open to public inspection (§§ 6252, 6253) and that the claim of privacy of the names of users of excessive water resources is outweighed by the public’s “fundamental and necessary right” to be informed concerning the workings of its government. . . . In particular, petitioner is concerned about discriminatory enforcement of the ordinance.
    The District asserts that publication of those names could expose the individuals to verbal or physical harassment due to the strong currents of emotion on the subject of water overuse, and not simply encourage, through public embarrassment, those individuals to husband their water usage. Additionally, it argues, customers apply for water as a matter of necessity, not choice. Most residents have no alternate sources of water. .
    Nonetheless, “[a] mere assertion of possible endangerment does not ‘clearly outweigh’ the public interest in access to these records.” (CBS, Inc. v. Block, supra, 42 Cal.3d at p. 652.) The District should not be allowed to exercise absolute discretion, shielded from public accountability, in deciding which customer is a chronic water abuser. “In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.” . . . Disclosure of all who exceed their allocation will ensure that certain individuals do not receive special privileges from the District, or alternatively, are not subject to discriminatory treatment.
    The records sought are public records and, in the absence of a privilege or a compelling countervailing interest, “are open to inspection at all times ….” . . . Significantly, the class of information sought is not contained among the subsections that list exemptions from the general disclosure requirement. . .  Nor has the District established that the narrow privacy rights invaded are so fundamental that they outweigh the public’s “fundamental and necessary right” to be informed concerning the workings of its government. . .  Even given the strong concerns about water conservation, the record contains no evidence that revelation of names and addresses of those who have exceeded their water allocation during a billing period will subject those individuals to infamy, opprobrium, or physical assault.

Id. at 1585.  On the other hand, the court noted in reversing the trial court’s order denying access, drought conditions were a matter of highest public interest, and public disclosure might add an incentive for respecting the rationing regime.

The preservation of water resources has long been a matter of great concern in California. . . It is the policy of the state to foster the beneficial use of water and discourage waste. . . The rapid population growth in certain portions of Southern California has exceeded available water resources in the region. Recent years have witnessed a severe drought and water resources in Goleta have thereby been further reduced.    The District asserts that the overdrafting of one’s water allocation for a month’s period does not necessarily demonstrate noncompliance on the part of the customers. Nonetheless, publication of overdrafting by customers during a given period will discourage profligate use of water during the ensuing months and encourage customers to bring their consumption within the guidelines of the ordinance.    The District’s fear that outraged citizens will misunderstand the information sought is speculative and does not outweigh the public’s right to be informed of the District’s implementation of the ordinance.

Id. at 1586.